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What Is a 'Crime of Violence'? Supreme Court Says No One Knows

By Christopher Coble, Esq. on June 25, 2019

"In our constitutional order, a vague law is no law at all." That is not only philosophically true, but according to Supreme Court Justice Neil Gorsuch's words in a recent ruling, it's literally true now regarding a federal sentencing enhancement. The provision handed out increased prison sentences for defendants who committed crimes of violence while possessing a gun.

Gorsuch and the Court found that the statute defining a "crime of violence" failed to "give ordinary people fair warning about what the law demands of them." And therefore, the enhancement provision is now void. So, what does that mean for people who've already been convicted and sentenced under the law?

Clearly a Crime?

The law at issue authorizes heightened criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime." But, according to the Supreme Court, pinning down exactly what constituted a crime of violence wasn't easy:

The statute's residual clause points to those felonies "that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.

It's possible that the determination in some cases would be easy. In his dissent, Justice Brett Kavanaugh echoed a lower court's lamentation that we "must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK–47 at her family is a crime of violence ... It's nuts." But not every case would be so clear-cut.

"A statute that requires you to imagine how a crime would ordinarily be committed," Justice Gorsuch asserted, "and then to estimate the risk associated with that ordinary case of the crime, produces more unpredictability and arbitrariness than the Constitution tolerates."

Clearing Convictions?

As Kavanaugh also pointed out, it is unclear whether the Court's ruling will apply retroactively to those who have already been sentenced under the now-void statute. It's possible that prisoners could petition for review of their sentences. And because the statute created an independent criminal offense, those convictions could be thrown out altogether.

So, if you've been charged or convicted of committing a crime of violence while possessing a gun, contact a lawyer immediately to review your case.

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